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State’s attorney has public interest conflict

When public interest consistently loses to political expediency, it's time to reform the system. Re-writing the job description of state's attorney could help.

By Sauk Valley Media Editorial Board

County governments in the Sauk Valley have been getting consistently bad legal advice from their state’s attorneys about the state’s public access laws.

Four times in the past 3 years, the Illinois attorney general’s office has contradicted opinions by state’s attorneys in Lee and Whiteside counties on matters involving the Freedom of Information Act and the Open Meetings Act.

The AG’s Public Access Bureau twice found that then-Lee County State’s Attorney Henry Dixon had steered his county board wrong on the law that ensures citizens’ rights at public meetings.

Another ruling said that then-Whiteside County State’s Attorney Gary Spencer had wrongly advised the sheriff on the public’s right to inspect and copy government records. And now his successor, Trish Joyce, has been reproved for supporting the county board’s decision to conduct an illegal meeting.

Our critics might tell you the problem is that this newspaper is “making the news” – rather than just reporting it – when we ask the attorney general to review a local opinion on public access that we think is clearly wrong. But we believe that monitoring the performance of public officials is part of our role as local government “watchdog.” And, as the state’s attorneys can tell you, we’ve got a pretty good track record of being right.

We believe the problem lies in the conflicting roles that state’s attorneys have under Illinois law.

For example, those Democrats on the Whiteside County Board who met illegally last November are subject to prosecution for violating the Open Meetings Act. The misdemeanor carries a maximum jail term of 30 days and a fine of up to $1,500.

And who is responsible for prosecuting such a violation of the law? None other than the state’s attorney who had already declared, in her role as the board’s legal counsel, that the meeting in question was a “political caucus” and, therefore, complied with the law.

Should a state’s attorney who is faced with such a conflict be protecting the interests of county government officials, or the interests of the public? As we have seen, such conflicts are not infrequent – and the public interest consistently loses to political expediency.

Illinois might look to other states where the singular role of a state’s attorney is to prosecute crime. Isn’t that a big enough job that it should not be distracted with civil law matters of county government?

In fact, in recent years the Whiteside County Board has complained that the state’s attorney failed to respond to requests for legal opinions. That led then-State’s Attorney Spencer to establish a new protocol for county officials to make requests for legal aid so that they didn’t get overlooked as his office was busy with criminal prosecution.

In those states where the state’s attorney is solely a prosecutor, the legal needs of the county’s executive and legislative bodies are served by a private lawyer who is hired by the county. That lawyer represents the county in matters of bidding, contracts, employment, zoning and other areas.

That doesn’t guarantee that the county gets any better legal advice on questions of public access. But it does assure citizens that their state’s attorney won’t be advising county officials to do things that ought to be prosecuted – which should make it more likely that penalties will be pursued for violations.

Separating those roles in Illinois should be expense neutral. Removing the job of legal counsel for the county should allow a downsizing of the office of state’s attorney, and those funds could be budgeted for contractual services to pay for legal assistance.

That would not be a quick fix, however. The Illinois General Assembly would have to re-write the job description of state’s attorney, and some folks might suggest that the Legislature of a bankrupt state has more important things to do these days.

But if the concerns of the public are going to compete with the interests of politicians in county government, a less conflicted office of state’s attorney is needed.